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Opponents of School Choice Appeal Douglas County Decision to Colorado Supreme Court

Opponents of Douglas County’s Choice Scholarship Program (CSP) have filed an appeal and petitioned for the school choice case to be heard by the Colorado Supreme Court, a month after a significant defeat in the Colorado Court of Appeals. A total of 93 pages of documents were filed with the Supreme Court on Thursday, the deadline for a petition to be submitted to the state’s highest court once the Court of Appeals upheld the constitutionality of the CSP in March.

The petition for appeal was brought by the ACLU, Americans United for the Separation of Church and State, Taxpayers for Public Education, Interfaith Alliance, and several individuals with strong ties to organized labor. In a joint press release which addressed reasons for the challenge, the groups continued to incorrectly assert that the CSP directly funds and illegally benefits private religious schools.

The ACLU’s recent press release highlighted the dispute over the constitutionality and alleged cost of the CSP.

“This case raises issues important to the constitutionally mandated public-education system in Colorado, which is facing serious financial difficulties,” said attorney Matthew J. Douglas of the Denver office of the international law firm Arnold & Porter LLP, who argued the appeal on behalf of ACLU.

While opponents claim the CSP has deprived public school districts of funds, the innovative charter school program from the Douglas County Board of Education (BOE) simply allows “per-pupil funding” to follow scholarship recipients to the school of their choice, whether religious or secular.

Absent from press releases and petitions to the court is the fact that students enrolled in the CSP would have been enrolled within the Douglas County district regardless. In order to participate in the program, scholarship recipients have to be residents of the county and enrolled in Douglas County public schools for at least one year prior to enrollment in the program.

Additionally, the proverbial Hail Mary to the Colorado Supreme Court fails to recognize that the CSP actually results in public schools receiving 25 percent of the per-pupil funding for students they no longer have to teach whenever a student takes advantage of the program to attend another school.

As the Supreme Court weighs whether or not to hear the CSP case, many of the complaints of the plaintiffs turn on an assumption that once a private school has received public funds, it effectively becomes a public school. This would then subject it to all statutes regarding employment discrimination, religious indoctrination, and so on. However, the Appeals Court explicitly rejected this idea on the basis that the funds are received for and by the students, for their benefit, and not disbursed to the schools directly.

Beyond the merits of the case, the Supreme Court may also decide whether or not those opposed to the charter school program even have the standing to bring suit. It is unclear whether or not private citizens have sustained injury due to the existence of the CSP. Although the appellate court did not rule on whether the injury was clear, it did cite existing precedent that gives school boards significant leeway when stipulating how school funds are managed, which favors the legality of the CSP’s direction of funds.

The defense for DCSD and the CSP has until April 22 to file a responsive petition to the Supreme Court.